London Borough of Bexley (21 007 588)
Category : Environment and regulation > Antisocial behaviour
Decision : Closed after initial enquiries
Decision date : 04 Oct 2021
The Ombudsman's final decision:
Summary: We will not investigate this complaint about a Fixed Penalty Notice for littering because the complainant can raise a defence in court.
The complaint
- The complainant, whom I shall refer to as Ms X, complains about a Fixed Penalty Notice (FPN) for littering.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
- I considered information provided by Ms X and the Ombudsman’s Assessment Code.
What I found
Fixed Penalty Notice
- A council can issue an FPN if it believes someone has committed a littering offence. If the person pays the fine the council closes the case. If they do not pay the council can prosecute. The person can then raise a defence in court. The court decides whether the person has committed an offence.
What happened
- The Council has issued Ms X with an FPN for littering. It says Ms X left cardboard tubes on top of a recycling bin. The FPN was for £150. The Council said this would reduce to £100 if paid within ten days. It explained this would discharge Ms X’s liability for the offence and she would not have to go to court. Ms X says she only placed the cardboard tubes on top of the bin because it was full. Ms X wants the Council to cancel the FPN.
Assessment
- We will not investigate Ms X’s complaint because she can raise a defence in court. Ms X is questioning whether an offence was committed and if she should be held liable. These are matters that need to be determined in court and are not issues we could decide. The court will decide if the Council is correct to allege that an offence occurred and that Ms X is liable for that offence. Or, the court may decide that Ms X has not committed an offence. Either way this an issue for the court.
Final decision
- We will not investigate Ms X’s complaint because she can raise a defence in court
Investigator's decision on behalf of the Ombudsman